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.4 

SPEECH 

HOl^. ^. J5. WITHERS, Of DEI., 

ON 

THE BILL TO GUARANTY TO CERTAIN STATES A REPUBLICAN 
FORM OF GOVERNMENT. 

DELIVERED IN THE HOUSE OF REPRESENTATIVES, APRIL 19, 1864. 

8unni;rfrA?.''h,-n*''^''7V°'^rT''°"S'°^"y *" '^^^^ °ff«r««3 any suggestions in 
suppo.t of the bill now before the House ; but the magnitude of the interests involved 
and my connec ion with the committee from which it emanated, render inerhai 
necessary, certainly appropriate, that I should devote a brief time to' the explanatTon of 
Its provisions and an enforcement of the principles upon which it is founded^ 
r..ltr,\ f? ^}'l "^"^y ^ "^"^ ^'''''^ ^'1 suggestions of a partisan character I an 

proach the subject desiring only to fulfill a constitutional obligation and to afford a^n 
adequate measure of relief to citizens who by '■ ' ' " " " " ^ •'" a^ora an 



the destruction of civil government suffer 
ible burdens of mei ' 
)n this question see 
ir"-^' /^"H'^»«"^^'''y«s irom states whose people have been in rebellioa are knockin<r 
tZltZ'^'^LtiT'T- .^'^'^'y ^y'"^^ proclamation of the President and thfeon^. 



the evils of anarchy, or the scarcely less intoi;V;ble^ b^^Tens of m^^e ; mmt^^^S" 
The necessity of speedy and definite action upon this question seems apparent Al' 
ready, _Representatiyes from States whose people have blen in rebellion Sp kniv,-tl 



sequent pronunciamientos of military commanders, the people are invited to erect civil 
etablishments; and uness we define the terms upon which these governments w 11 be 
ZTut ^°<i the admission of Representatives inured, questions low sufficient7y vex 
ing will be rendered more difficult of solution. ^ 

ruUfnJfl^ '!"'" complications and authoritatively to announce a fixed and uniform 
mintin t rr'°''i'^?r '"u" ^'^""^ ^° reestablish republican forms of go vera- 
ment m lieu of those which have been subverted, this bill has been devised. EmbodyTn^ 

eVn^ZkTZ^K ""T^' '^?L° ''■*?'" '^' °''?^"'° '^"' ''' f'-^ commentaries of aS " 

a?e ii reteS of' I T .'^^ ^^'°''''. ^°°«r'"^ ^^' ^*"*"^ ^^ *''« States whose peopl 

aie in rebellion, and accents as an admitted fact the n^^m■thr.^^ ^f fi,„i- o^... F«"P' 



ments and the establishment in their stead of usurpations at war equaHy with the fJnda-" 
mental principles of the Constitution and the republican forms which^we are bound to 

Pv^i^^'f°^'''''^'??°^T*^•^'P''^^^ ordinance that "the United States shall guaranty to 
wRhfr X\ '\ r ^ ^°l"^ i' republican form of ggvernment," it finds its justiSon 
withm tKe strict limits not only of constitutional authority but constitutional requirement 
ios-n.zing in the origin and progress of the rebellio/ a power which by t!he el^J ^ 
1 or acQuiescenee of tiA fi'iiyona r.f +Viac« c<f„t„., U.J ' u ^ , .. ■•'„ >=^-^ple^s 



Recogn 
volition 



Irnr^Z ■^'^'''''T'' °^ \''' "^^^'^"^ '^ ^^''^ ^'"^*«« had abrogated their former 'gov- 
ernments. It proceeds upon the necessity of the reconstruction of their systems bvtlL 
primary and organic action of the people. Maintaining that the legislative dTpartmen? 
s the OHly judge concerning the form of government which it is bound to guaiantv " 
denies tnat It IS competent for the Executive to prescribe the conditions of To Sre 
t e lequisi tes.necessary to make that guaranty effective, and that as t^e consequence of 
the establishment of a State organization is the right to representation upon thHoor i 

crsnt;;qua';:i7:xisr°" ''- -'^'-- of t,i juo.se,. ...u.i::^:^ 

Such being iu brief its fundamental principles, its specific object is to substitute as 
rapidly as consistent with national safety, for the uncertain and inrestricted operation 
of military discretion the fixed and definite rule of an established civil ma4tmcv eov 
erning according to ascertained powers, prescribed by the express wiU o1 tl e p^oTe" 
Before proceedmg to analyze the special provisions of the bill, I ask attention o Lrtai^ 
nuiri % K """f^ P'T'' T°^ \^' Government, limited only by the nature of the duty re- 
qu red to be performed _ In doipg this I shall not attempt any crude theories or sp^ecu- 
lative disquisitions. It is sufficient for me to resort to powerl specifically conferreTby 
the Constitution, and to arguments drawn directly from the teachings of the fathers^ 
These postulatesl^re thus clearly and cogently defined by Alexander Hamilton 
ol 01 the Jtederalist: ' 







m No. 






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^^218 9 



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can be assig^^d, the power of making that provision ought to know no other bounds than the exigences 
of the nation and the resources of the community." 

Subjected by the Constitution to tlie necessity of the guaranty' of republican govern- 
ment to th*^ States, there must necessarily accrue to the United States the right not only 
to declare the existence of the contingency on which its action ia invoked but to deter- 
mine the choice of the means necessary to render it effectual. 

Being a political power it is necessarily exclusive and not subject to the supervision of 
any other tribunal. As the exigencies requiring the exercise of the power are undefin- 
able, the authority conferred is equally incapable of limitation, and rests in the sound 
discretion of Congress applying its own will and employing its own judgment in the en- 
forcement of its own guarantee. 

The framers of the Constitution were too wise to attempt to set bounds to that which 
in its very essence is impossible of definition, and instead of imposing any restraint they 
ordained thesweeping clause empowering Congress to pass all laws necessary and proper 
to carry into effect any power vested in the Government. 

This express declaration was probably not necessary — the power would have resulted 
from the imposition of the duty — but they were too cautious and provident to leave to 
inference a grant essential to the preservation of the Union and the execution of the high 
trust to maintain the supremacy of the United States. In relation to these principles Mr. 
Hamilton, in Ko. 34 of the Federalist, uses the following language : 

" Constitutions of civil gorerninent are not to be framed upon a calculation of existing exigencies, but 
upon a combination of these with the probable exigencies of ages according to the natural and tried 
course of human affairs. Nothing, therefore, can be more fallacious than to infer the exti-nt of any power 
proper to be lodged in the national Government from an estimate of its immediate necessities. There 
ought to be a capacity to provide for future contingencies as they may happen, and as these are illimit- 
able in their nature so it is impossible safely to limit that capacity.'' 

If such be the nature of discretionary power lodged in a Government in its application 
to the subjects of its ordinary exercise, how much more does it require that it should be 
unrestrained when it is invoked for its preservation. 

It is vain to attempt to control the discretion of an individual who acts upon the im- 
pulse of self-defense. It is worse than folly to ingraft upon an instrument designed to 
perpetuate its own existence provisions denying a capacity equal to the occasion. It is 
absurd to require that Congress shall guaranty a republican government to States, and 
deny the right of judgment as to the exigency or the means necessary to execute the 
trust. To do this would be to require that the instrument should invite to violations of 
'its own provisions; and as every breach of tlie fundamental law, no matter upon what 
necessity, would but familiarize the mind with infractions, it is but safe to infer that the 
Constitution has invested us with power commensurate with the duty to be performed. 

I am aware, Mr. Speaker, that these maxims are or ought to be familiar; that they are 
axiomatic principles lying at the foundation of ever\' government and that they inhere in 
the United States as fully as any other element of sovereignty. Because they are ancient 
and well established I have chosen to propose as the groundwork of this bill these funda- 
mental truths, the teachings of those great masters of political'ethics who when they had 
builded our national structure engraved upon its portals these postulates of power by 
•which to enable us to maintain it unimpaired, even against the earthquakes of rebellion. 

With this brief outline 1 pass to a consideration of the principal features of the pro- 
j^osed enactment. 

It is the purpose of the committee, before putting it upon its passage, to change the 
provisions authorizing a State government to be reestablished by one-tenth and to require 
the assent of a majority of those who may be enrolled, and in my remarks I will treat the 
bill as thus modified. 

Much of the bill is necessarily devoted to the mere machinery by which it is to be 
operated. Its leading features are few and simple. 

The first idea presented is that no State can or ought to be recognized as capable of 
organization until military resistance to the United States shall have been suppressed 
therein and the people shall have demonstrated fidelity to the Constitution and a returij 
to obedience to the laws. Until that time they are to be considered as under the tutelage 
of the General Government. To this end it is" provided in the first section that the Presi- 
dent shall appoint for each such State — in addition to the ordinary officers — a governor 
ad ititerim, to be charged with the civil administration. 

Regarding the unhappy condition of those who by the advance of our arms are brought 
within our actual control, it is the design of the bill not only to offer facilities for the es- 
tablishment of a permanent government, but, until that shall have been accomplished, to 
afford the advantages of a civil magistracy to citizens who, subject to#ts jurisdiction, 
have not the ascertained will or the numerical force to maintain a regular system. Under 
the most favorable circumstances, time must necessarilj' elapse before they can perfect 
any organization. In the mean time the exigencies of a community require the adminis- 
tration of laws, the punishment of crimes, the enforcement of contracts, and the adjudi- 
cation of civil rights. 



The civil power of the provisional governor, except so far as relates to the preparatory 
measures for organizing a convention, consists in taking care that the laws of the United 
States and of the State in force when the State government was overthrown shall be ad- 
ministered. For the temporary exigency the United States adopts the code of the State 
for the government of the people ad interim. This seems manifestly appropriate. It 
recognizes the urgency of the occasion, and, instead of subjecting them to new and un- 
tried enactments, confers upon them for their governance a system with which they are 
ah-eady familiar. To this general proposition are three exceptions: it is declared that no 
law whereby slavery is recognized shall be enforced ; that laws for the trial and punish- 
ment of white persons shall extend to all persons; and that no person shall be a juror 
who has held any office or voluntarily borne arms under the rebel usurpation. 

To these excepted cases itisdifficult to imagine any well-grounded objection. There can 
ba none as to the question of power. The officers charged with the execution of the laws are 
the agents of the national Government; and the code adopted for the regulation of the civil 
policy of the community, though priorily existing, is^^ro hac vice the enactment of Con- 
gress. Adopting these laws because of their supposed adaptation to the requirements of 
the people in the several localities wherein they have obtained, they are nevertheless as 
fully the ordinances of this Government as though they had been enacted in express 
terms. Emanating from this Legislature as original propositions, it is for us to determine 
how much of such former laws are adapted to the exigency. By this clause no change is 
wrought in the permanent body of legislation. It is merely the temporary expedient 
devised for the immediate necessity of Government, and enduring only so long as the 
society which it regulates remains in an unorganized condition. These propositions are 
equally defensible in principle and policy. That the Government in any oi'dertoits own 
othcers should issue instructions for an original recognition of slavery is absurd. What- 
ever may be the sentiment as to the right of the States to control their domestic institu- 
tions, I suppose that it will not be pretended that officers and agents of the United States 
should be appointed to administer the slave code of any State under the immediate di- 
rection and sanction of the national Gov^ernment. It would be the simple proposition 
not to protect the institutions of a State, but to originate and administer its obnoxious 
enactments as the express wili of the representatives of the nation. So with the pro- 
vision regulating the trial of criminals. In providing that the laws shall apply alike to 
the punishment of all persons, it announces a principle of equal and universal justice; 
and without the provision regulating the qualification of jurors there would be no guar- 
anty that the rights of the Government would be respected or justice to loyal men 
secured. 

Having thus provided for securing civil government to citizens during the period of 
their political disorganization, the bill proceeds to define the mode by which a conven- 
tion shall be called to declare the wib of the people relative to the re-establishment of a 
State government. It enacts that an enrollment shall be made of all white male citizens 
of the United States resident in the State, prescribes the condition of loyalty as requisite 
to the right of suffrage, defines the number and qualification of the delegates, provides 
for the ratification by the people of the constitution ordained by the convention, directs 
the return thereof when ratified to the provisional governor, and requires that it be cer- 
tified by him to the President of the United States, who, after Congress shall have as- 
sented, is directed by proclamation to recognize the government so established as the con- 
stitutional government of the State. 

In all this proceeding the right of the people to establish their organic law is reeog- 
nized and maintained. Three conditions are prescribed as essential to the enforcement of 
the guarantee, and as necessary to the safety of the Republic : 

First, that no person who has held any oflice under the usurping power shall vote for or 
be a member of the Legislature, or Governor. It will be perceived that the exclusion is lim- 
ited to those who have held official positions. To accept and administer an office is prima 
facie evidence of two facts — voluntary adhesion to the rebellion and presumptive capa- 
city for the administration of public affairs. 

Apart from the apparent pfopriety growing out of these considerations, the exclusion is 
rendered necessary by the provisions of the Constitution of the United States. By section 
two of article one it is provided that electors of Representatives in Congress shall have 
the qualifications requisite for electors of the most numerous branch of the State Legisla- 
ture, and there is no other qualification for a Representative than that he shall have at- 
tained the age of twenty-five years, have been seven years a citizen of the United States, 
and when elected be an inhabitant of the State. By section three it is ordained that 
Senators in the Senate of the United States shall be chosen by the Legislature, and in 
case of vacancy by the executive of the State. 

Thus intimately connected is the State administration with the Government of the 
United States ; and it is to prevent the possibility of placing the national resources under 
the control and the national life at tiie mercy of those who have so lately demonstrated 
their hostility to republican institutions, that this clause of exclusion has been prescribed. 
It is designed as a caveat against the reeurroace to power of those base men who, -with 



oaths of fidelity to the Constitution upon their lips but with treason rankling in their 
hearts, sat in these Halls as the legal guardians of the Government, while in secret they 
conspired the overthrow of the Republic and stimulated their followers to rebellion agaiast 
its authority. 

The second condition is that involuntary servitude is to be prohibited, and the freedom 
of all persons guarantied in such State. 

As the few remarks which I would otherwise niake in relation to this clause will be 
equally appropriate to the section which specially declares emancipation,! will postpone 
comment until it shall come under consideration. 

The third proviso is that no debt created under the sanction of the usurping power 
shall be recognized or paid. 

It will be observed that this clause has relation to obligations created by State or con- 
federate authority. . It has no reference to private engagements. This Government, Mr. 
Speaker, is burdened with an immense debt, imposed by the necessity of the suppression 
of the rebellion. The pledge for its payment is the capacity of the national resources. 
The States to be organized under the provisions of this bill are, of right, subject to con- 
tribute a proportionate share; and it is the duty of the Government to insist that they 
shall not be rendered unable to meet their liabilities by the assumption of indebtedness 
contracted or imposed in contriving its destruction. The agreements and statutes by 
which these pretended obligations have been created are utterly void. The offspring of 
usurpation, their payment would be a bribe to future rebelliofi and their assumption a 
defiance to the authority of the United States. 

But, Mr. Speaker, it has been charged that this bill, in providing for reorganization, 
abandons the, fundamental principle of this Republic, that all just powers of government 
are derived from the consent of the governed. 

This allegation is worthy to be considered, and, if the criticism be just, will constitute 
a reasonable objection. I presume that it is not denied that it is desirable to furnish 
civil government to the loyal people of these States at a period as early as practicable. 
It is also conceded that this government should be based upon the will of the people, 
legitimately expressed. The guarantee of the C'onstitution requiring a republican form, 
it is essential that it should recognize popular sovereignty as an indispensable element in 
the political structure. Before j)roceeding to reply specifically to the objection, it is 
proper to refer tc> the condition of the States whose governments are to be organized. 

I have said, Mr. Speaker, that the bill proposes no special theory as to their status. 
While this is true, except only so far as it is to be inferred from the emploj-ment of con- 
stitutional terms and phraseology drawn from authoritative commentaries, and while it 
is, therefore, true that the advocates of any of the several theories can consistently sup- 
port it, nevertheless the argument requires that I offer what I believe the true position 
in which they are placed b}' the rebellion and the consequent relation they sustain to the 
United States, as wholly justifying the provision in question. • 

I do not agree, Mr. Speaker, with those who hold that the suspension or subversion of 
an existing government necessarily destroys the State. A nation can exist without an 
administration. It may suffer an interregnum ; its lawful rulers may be overborne; a 
usurper may seize the instruments of autiiority; the faithless repositories of its oower 
may abuse their trust and wrest to their own aggrandizement the functions of office. Still 
the State remains. It resides in those in whom is vested the ultimate right of sovereignty. 
" I am the State," was the arbitrary declaration of the despotic Louis. The people are 
tbe State, is the maxim of republican America. This principle is nowhere more tersely 
or cogently announced than iu our own Declaration of Independence, in which, after 
charging the king with dissolving representative houses and refusing to cause others to 
be elected, it declares as the consequence, that 'Hhe legislative powers, i,icapable of anni- 
hilation, relumed to the people at large for their exercise, the State remaining in the mean 
time exposed to all the dangers of invasion from without and convulsions within." The 
same idea is presented, periiaps more clearly, certainly more full}', by Mr. Madison, in 
No 3 of the letters of Helvidius. Treating of the rights of States, in relation to a kin- 
dred subject, he uses this language: 

" Public rights are of two sons: those which require the agency of government ; those which may be 
carrieii into effect without that agency. * 

" As public rights are the rights of tlie nation, not of the Government, it is clear that wherever they 
can be made good to the nation without the office of Government, tliey are not suspended by the want of 
an acknowledged Government or even by the want of an existing Government." 

Here the distinction is clearly marked between the Government and the nation, the 
agent and the principal, the office and the State. Having thus defined the position, he 
maintains it bj^ an example so pertinent Ihat'I quote it in illustration of the principle 
for which I contend : 

" Suppose tliat after the conclusion of the treaty of alliance between the United Slates and France a 
party of thp enemy had :<urprised and put lo death every member of Congress; that the occasion had 
been used by the peopir of America for changing the old Confe.leracy into such a Governinent as now 
exists, and lliat in tbe progress of this revolution an interregnum had happened; suppose, further, that 
during this interval the States of South Carolina au^ Georgia, or any other other parts of the United 



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states, had been attacked and been put into evident and imminent danger of being irrecoverably lost 
■without fhH interposition of the French arms, is it not manifest that as the treaty is ihe treaty of the 
United States, not of their Government, the people of the United States could not forfeit their right to 
the guaranty of their territory by the accidental suspension of their Government, and that any attempt 
on the part of France to evade the obligations of the treaty, by pleading the suspension of Government, 
or by refusing to acknowledge it, would justly have been received with universal indignation as an igno- 
minious perfidy?" 

The CoDstitulion of the United States, Mr. Speaker, is a compact between all the peo- 
ple of the several States in this Union. By its express terms the United States is bound 
to guaranty to each State a republican form of government. The people of New York, 
equally with those of Tennessee, have the right to demand that this guaranty shall be 
fully and faithfully executed. It is a public right, and the obligation to its performance 
does not depend on the presence of a government in the State. It would have been in- 
effectual had it supposed its absolute continuance. Were the people able to make head 
against the usurpations of power or the violence of domestic factions, and to maintain 
the integrity of their government, the interference of the United States would, ordiiiarily, 
have been unnecessary. The duty of the guaranty is not essentially dependent upon the 
cooperation of the State authority. The people, not the States, are the parties to the 
compact. The maintenance of the right is of exclusive and universal obligation. It ex- 
tends to every State in the Union, and wherever there is a people there is both territorial 
and political existence, the latter being composed of the elements of sovereignty, and, 
in the absence of organized government, dwelling in the loyal inhabitants of the State. 

This general guarantee, .Mr. Speaker, would have existed in the absence of the special 
clause declaring its obligation. The nature of the Constitution, the necessity of Union, 
the requirements of public law would have demanded its exercise. It would have re- 
sulted from the compact of the people and the objects of the Government. The rule is 
thus laid down by Vattel : 

" If a nation is obliged to preserve itself, it is not less obliged to preserve all its members. The nation 
owes this to itself, since the loss of one of itr< members weakens it and is injurious to its own preservation. 
It owes this also to the members in particular in consequence of the very act of association ; for those 
who compose a nation are united for their defence and common advantage, and none can be justly de- 
prived of this union and of the advantages which flow from it while he on his side fulfills the conditions. 
The body of a nation cannot therefore «bandon a province or town or even a particular person who has 
done his part, unless obliged to it from necessity or unless it is made necessary by the strongest reasons 
founded on the public safety." 

But, Mr. Speaker, as a nation may be obliged from overruling necessity to abandon 
its citizens, so the individual may be forced, by the exigency of circumstances, to yield 
to the power of the usurper. No matter how loyal he may. be in sentiment, flagrante 
bello he is a public enemy, for his personal condition is determined by that of the society 
of which he is a part. , 

But as in a nation allegiance and protection are correlative, when the power of the 
Government has been asserted, the person thus forced to disguise his loyalty is to be held 
harmless, unless he has given aid or comfort to the enemy, and is remitted to his rights 
as a citizen, subject to the exigencies supervening upon the contest and necessary to the 
safety of the nation. 

If the proposition be true, Mr. Speaker, that the loyal people of the State are the re- 
positories of its power and unorganized sovereignty, then is this bill not liable to the 
objection proposed. In providing the preliminary arrangements it must of necessity 
proceed upon the primary idea of the destruction of government, and therefore begin 
de novo with the rude elements of an unformed political society. The first step in the 
formation of a government based upon the will of the people is to determine of what 
persons that people shall be deemed to consist. For this purpose an enrollment is di- 
rected to be made of all white male citizens of the United States resident in the State 
and in their respective counties. This provision recognizes the existence of the State in 
its territorial and political subdivisions as established by the laws anterior to the re- 
bellion. It also confines the enrollment to the white male citizens, recognizing in them 
alone the right of government. This enrollment of itself was manifestly insufficient to 
define those entitled to be considered capable of taking part in the organization or of 
consenting to the reestablishment of the new system. By its terms all white male citi- 
zens were to be enrolled; but inasmuch as rebels are citizens of the United States, tJiough 
arrayed against its authority, a test must necessarily be applied to ascertain who, being 
loyal, are entitled to participate in framing the organic law. The bill does not regard 
any right as pertaining to those adhering to the rebellion. They are excluded from all 
share in the government formed under its auspices. The test proposed is an oath to 
support the Constitution of the United States. The persons thus taking the oath must 
constitute a majority of those who are enrolled. These persons so enrolled and testify- 
ing to their loyalty are deemed to constitute the people. By their assent the machinery 
of government is to be set in motion. On tlieir consent the constitution to be ordained 
is to rest, not only in the origin of the convention, but in its ratification by their ex- 
press will. 

How, then, can it be pretended that the government is not based upon the consent of 



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the governed ? Is it because persons are excluded who refuse to qualify themselves by ( 

taking the oath of allegiance? Sureljr it can be no deprivation of any political right to \ 

declare that he who renounces obedience to the Government shall not have the privilege 
to determine concerning the form of State government to be established. 

I deny that a rebel has any political rights. I deny that in any legitimate sense he is 
or ought to be held as one of tlie people authorized to form or administer government. 
Tiiat he is not recognized by this bill as entitled to citizenship is the result of his own 
refusal to acknowledge allegiance to the United States. 

But it may also be alleged, Mr. Speaker, that the bill is objectionable because it pro- 
vides that a number less than a majority of those who were formerly citizens of the 
State may ordain the constitution. 

Jf this comprises all the loyal people it is difficult to discover on what principle it can 
be denounced as anti-republican, If they are satisfied with the law of restoration, in 
accordance with the act of Congress, who has the right to complain? By their own voli- 
tion they accept the terms of reorganization, aiid it ill behooves those not subject to the 
laws which they enact for their own government to deny them the privilege of entering 
upon the administration of their own domestic affairs. 

The proportion to be established b}' the bill is a matter for consideration ; not with the 
view of avoiding the chaige of a violation of the principle of republican g'wernment, 
but of ascertaining whether there is a body capable of self-rule and of maintaining civil 
administration in the State. 

But, Mr. Speaker, we are also met with the objection that this bill, by the provision 
of emancipation, interferes with the rights of the several States within its purview to 
regulate their domestic institutions. This is no novel suggestion. It is as old as the 
struggle for the adoption of the Constitution. It constituted a material portion of the 
argument of those who arrayed themselves against the formation of the national Gov- 
ernment. From that time until now it has been constantly thrust forward in every dis- 
cussion involving the right of Congress to adopt measures requisite for the national 
advantage. 

Do we propose to exercise the power of regulating the currency ? "We are met by the 
dogma of State rights, enlisted in the interest of local banks. 

Do we endeavor to exert our authority to regulate commerce ? "We are confronted 
with the same phantom of State rights, pressed into the service of some municipal cor- 
poration. 

Do we determine to save the Government, reeline: beneath the blows of a formidable 
rebellion organized and operated by the instrumentality of African slavery ? "We dare 
not accomplish its suppression and prevent the contingency of future insurrections for 
fear we shall invade the hallowed precincts of State rights. 

Mr. Speaker, it is time that there was an end to this delusion. The danger to this peo- 
ple is not from centralization but disintegration. The sad spectacle of to-day is a mourn- 
ful confirmation of the fears of our fathers. The miseries now afHicting the Republic 
have been produced by the unceasing efforts of local partisans to persuade the people of 
the hostility of the national Government to their domestic institutions. It has culmi- 
nated in rebellion against its authority. Combatting this pernicious doctrine, the advo- 
cates of the Constitution demonstrated, by examples drawn from the history of nations, 
that instead of invading the rights and absorbing the functions of the local governments, 
the probable result would be that the States would trench upon the proper office of the 
national administration. They showed that, influenced by constant familiarity with 
their alfairs, affected by the ieamediate protection afforded to his person and property, 
and looking to them as the direct means of official preferment, the citizen would come to 
regard the States with the higher affection, and that because of the apparently more re- 
mote and infrequent presence of the protecting power of the nation he would hold it in 
less esteem, though far more potent in securing his safety and happiness. 

Xot content with this refutation of this objection to the plan of the convention, Mr. 
Madison, rising to the dignity of his high office, and imbued with the paramount impor- 
tance of the national Union, thus boldly announced his opinion of their comparative 
benefits: 

' ' ir,^n a word, the Union be e?8enti:<l to the happiness of the people of America, is it not preposter- 
ous to urge as an objection to a Government without which the objects ol tlie Union cannot be attained, 
thill sucli a Government may derogate from the importance of the governments of the individual States? 
Was then tlie American Uevolution elTected, was the American confederacy formed, was the precious 
Mood of thousands spilled and the liard-earned substance of millions wasted, not that the people of 
America should enjoy peace, liberty, and safety, but that the governments of the individual States, that 
particular mmiicipnl establishments might enjoy a certain extent of power, and be arrayed with certain 
dignities and attributes of sovereignty V * 

"It is too early for politicians to presume on our forgetting that the public good, the real welfare of 
the great body of the people is the supreme good to be pursued, and that no form of government what- 
ever has any other value than may be fitted for the attainment of this object" 

These words of power and wisdom are as applicable to the present condition of public 
affairs as when they were written to secure the adoption of the Constitution — as mighty 
to save ae to found a nation. 



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If indeed there ■were such antagonism between the two systems of government that 
one or the other must perish, it would be for the people to judge which should be sacri- 
ficed ; whether that which renders us great and powerful and prosperous should give 
waj- to the maintenance of petty municipalities that could secure neither respect abroad 
nor concord at home. Should the dread alternative be presented, I mistake the temper 
of the people; and their estimation of the solid and substantial benefits of the Union, if 
they would not choose a consolidated and centralized Government rather than underlie 
the calamities incident to individual States or miserable confederacies, the inevitable prey 
of intestine strife and foreign domination. 

But, Mr. Speaker, much has been said about overleaping constitutional barriers. "What 
definition has the Constitution prescribed to the exercise of power in the suppression of 
rebellion against its authority? What limitation has it fixed against its own preserva- 
tion? What measure of force does it indicate assufticient to preserve the Union? This 
Government is as unrestricted in the scope of its faculties as the veriest despotism. Its 
weakness consists not in its want of inherent powers, but in their distribution and in the 
dependence of the temporary administration upon the final sanction of the people. This 
necessity for their concurrence renders a republican Government least fitted to cope with 
sudden and desperate emergencies. There is always a party in the State arrayed in op- 
position to the ruling policy. Appeals are made to the final tribunal for its judgment, 
and its administrators are alternately charged with despotism and imbecility. This prin- 
ciple of absence of limitation is clearly expressed by Mr. Hamilton, in No. 33 of the 
Federalist, in his comment on the general enabling clause of the Constitution: 

" But it may be asked, who is to judge of the necessity and propriety of the laws to be passed for 
executing the powers of the Union? I answer, first, that this question arises as well and as fully 
npim the simple srant of those powers as upon the declaratory clause; and I answer in the second 
place, that the national Government, like every other, must judge in the first instance of the proper 
exercise of its powers, and its constituents in the last." 

Subjected to this test of approval it must of necessity exercise caution, not because of 
the want of constitutional power, but lest it should be overruled by those in whom lies 
the final arbitrament. If these concur, ttien it is unrestrained in the use of the means 
committed to its' discretion and employed toward the object of its creation. 

But, Mr. Speaker, if it were possible that there could be so absurd a thing as a simple 
Government destitute of the powers necessary for its own preservation, let me call the 
attention of the House to an example drawn from the history of the nation. 

The Convention that ordained the Constitution was charged with having exceeded its 
commission. It was alleged that its members had overstepped the limits of their author- 
ity — that they had no capacity to form a Government, but only to propose amendments 
to the existing Articles of Confederation. In defending the Convention against this ar- 
raignment of the enemies of the Constitution, upon their own hypothesis of an excess of 
jurisdiction, Mr. Madison thus sums up his judgment upon the |U'oposed charge: 

" Had the Convention under all these impressions and in the midst of all these considerations, in- 
stead of exercising a manly eonfldenue in their country, by whose' contideuoe they li,-.;d been so peculiarly 
distinguished, and of pointing out a system capable, in their judgmc-nt, of securing its happiness, taken 
the cold and sullen resolution of disappointlDg its ardent hopes, of sacrificing substance to torms, of com- 
mitting the dearest interests of their country to the hazard of events, let me ask the man who can 
raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what 
judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every 
virtuous citizen on the conduct and character of this assembly ? The sum of what has beeu advanced 
and proved is that the charge against the <'onvention of exceeding their powers, except in one instance 
little urged by the objectors, has no foundation to support it; that if they had exceeded their powers 
they were not only warranted, but required, as the confidential servants of their country, by the circum- 
stances in which they were placed, to exercise the liberty they assumed." 

The gentleman from Ohio, (Mr. Garfield.) who has been so fiercely assailed for his 
manlj' declaratio'n, can take courage that he is sustained not by the vagaries of fanatical 
abolitionists or border State radicals, but by the example of the fathers'of the Constitu- 
tion, commended in the breach of their authority by the calm and contemplative Madison. 

To these peculiar friends of the people, whose jealous vigilance of the Constitution 
leads them to contemplate with stolid indifference or inward satisfaction the disruption 
of the Union, he can reply, in the language of the patriot: 

" No little, ill-timed scruples, no zeal for adhering to ordinary forms, are anywhere seen except in those 
who wish to indulge under these masks their secret enmity to the substanc* contended for.'' 

But, Mr. Speaker, I have endeavored to show that there is no necessity for a resort to 
this extreme right; that we are invested with plenary discretion, controlled only by the 
emergency and the sanction of our constituents. Two questions are to be solved : is 
emancipation necessary to our safety? will it be justified by the people? 

What threatens the disruption of the Union ? What has brought upon the nation this 
terrible crisis of civil war? What engine of mischief so jiotent as to have arrayed a 
people against their Government? Slavery. Type of a barbaric and receding civiliza- 
tion, it stands confronted by the hosts of freedom. 

I will not argue, Mr.>Speaker, concerning the justice of our quarrel. I will not debate 
the necessity of crushing the rebellion. The people have determined that it shall be 



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^ _ , ._T^.ts unhallowed cause shall be destroyed either by voluntary action or 

by ihe power of the sword. The war is between systems. Every soldier is an apostle 
liberty, every cannon-shot a proclamation of emancipation, and the gleam of the bayonet 
in the hands of the negro illustrates his title to manhood. It becomes us in the exercise 
of the high functions with which we are invested to cooperate with the moral and ma- 
terial forces now engaged in the present salvation and future preservation of the Union. 

1 trust not, Mr. Speaker, wholly to presidential proclamations. I prefer to rest the 
security' of the Republic upon the safer and naore irrefragable basis of congressional en- 
actments. I would not forego anj^ possible precaution against the recurrence of fraternal 
strife. Homogeneity of institutions is our only safeguard, universal freedom the only 
possible solution. 

Let us, then, Mr. Speaker, by this bill and by constitutional amendment, proceed boldly 
to the aconiplishment of this necessary condition, and realize for ourselves the time con- 
templated by the great orator, when there will be '^noti alia lex Romce, alia Athenis; 
alia nunc, alia posthac, sed in omni tempore et in omnibus gentibns, una lex et 
sempiterna continebit." When this shall have been accomplished, though it will bring 
new and untried conditions of social, financial, and political existence that will tax the 
wisdom of the statesman and the endurance of the people, yet I have faith that they will 
be found equal to the emergencj', and that this great nation, mightier for the struggle 
through wliich it has passed, its Constitution compacted by resistance to rebellion, and 
its people purified by the trial of fire, will pass to the fulfillment of its destiny, securing 
"the blessings of liberty to ourselves and our posterity," and ultimately the political re- 
generation of the world. 

I send to the Clerk the following memorial, which I desire to be read. " 

The memorial was read, as follows: 

To the Hoiiorahle the Senate and nouse of Representatives of the United States in Congress assembled : 
The memorial of the undersigned loyal citizens of Louisiana respectfully represents that as Union 
citizens of New Orleans and the parish of Jefferson, and members of the Union Free stale General Com- 
mittee of the Stale of Louisiana, ihey have faithiuUy labored to accomplish the reorganization of civil 
governmeni therein. That the plan proposed by the committee was ba.-ed iii)im the idea that the con- 
stitution and State government of Louisiana had been overthrown by the rebellion, and that it was the 
duty of the loyal people, in the absence of an enabling act of Congress, to organize a new government, 
founded on the principles of republican freedom, so soon as a sufficient portion of the Stale should be 
brought under the control of the Union arms, and Ihe population sufficiently imbued with sentiments of 
liberiy and loyalty to render civil reorganization safe and permanent ; and to this end the committee laid 
their plan bef^ire Biigadier General George H'. .Shepley, military governor of Louisiana, who, under orders 
from the Presideni "I the United Stales, gave his aid" in carrying it out. The committee also recom- 
mended the assembling of a mass meeting of ihe citizens of the Slate, which was duly assembled at the 
St. t^liarles theatcr'in the city of New Orleans, on the 8th day of January, 1S64, was immensely large, re- 
presenting New Orleans and the other jjarishes within the Union lines, and composed entirely of loyal 
citizens, wlio most enlhusiaslically indorsed the aclion of the Union Kree State General Committee and 
called upon and authorized Governor Shepley to order an election of members of a constitutional conven- 
tion to assemble in New Orleans at an early day. The leading ideas of this plan of the committee and 
popular demonstration aforesaid were a restoration of a civil government by the aclion of citizens with- 
out military control or interference, by means of a constitutional convention, elected by loyal people, 
only. These ideas were reversed and set aside by the proclamation of the major general commanding this 
department, issued on the 11th day of January, 1S04, in which he ordered the election of a Governor, a 
Lieuten.int Governor, and Uve other oflieers of an executive department, only, under the constitution and 
laws of Louisiana, except such as related to slavery, which is not inenli.med in the couslitulion, 
thereby recognizing officially that Ihe constitution of Louisiana was not destroyed by the rebellion, but 
existed. 

This proclamation also announced that martial law was the fundamental law of the State, and .lastly 
directed that an election of members of a convention "for the revision of the constitution," thus again 
recognizing its existence, should take place on the 4lh of April, which the general subsequently changed 
to the 2Sih of March These elections have been held A Governor.and other State officers were chosen 
on the 22d of February and members of a convention on the 28lh of March. Your memorialists solemnly 
solemnly protest against this course of proceeding. They maintain thai a commander of an army should 
not be permitted to organize civil government in a State at his own will and pleasure and according to 
his own orders, but that such powers should be reserved to Congress or to the people. Your memorial- 
ists are of opinion thai the elections just held were carried by the influence of the name of the command- 
ing general, since, and as it was universally declared and believed, his wishes were in favor of one set of 
candidates and opposed to the other, the elecliou was noi free, but from ihe immense influence which, 
under the reign nf martial law, such a belief produced, it was not possible llie elections could have had 
other than that which it was thought Ihe commanding general desired. Your memorialists maintain that 
a Slate government should only be organized when there can be no possibility imputed any military or 
other improper mlluence, and should not be attempted while martial law is )>roclaimed and enforced as 
the luudamental law of the State, and they are of opinion iliat under the circumstances no State reor- 
USaiiizaiion should take ))lace until Congress shall have provided lor it, or it shall have been fully and fairly 
ascertained that the mass of the citizens of the State desire a loyal Slate government that will secure and 
perjietuaie the liberties of all the inhabitants. 

Your meraorialisis, therefore, respeclfully urge upon Congress not to recognize the late proceedings in 
■ the form of elections which have been M^d in this Slate, and they pray your honorable body to pass an 
act enabling the loyal citizens of the Stale of Louisiana to form a new State Government, and that you 
will by proper provisions secure ih^ rights of all the inhabitants, and also the entire freedom of the elec- 
tion, at such time as you shall deem proper for holding the same. 

THOMAS J. DUKANT, 
and sixteen others, 

I'rinted by Lemuel Towers, corner Sixth street and Louisiana Aveuue, Washington. 






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